UNITED STATES
DEPARTMENT OF LABOR

Geraci v. Texas Natural Resources Conversation Commission, 2002-WPC-1 (ALJ July 9, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 09Jul2002

Case No.: 2002-WPC-00001

In the Matter of

GARY E. GERACI
    Complainant

    v.

TEXAS NATURAL RESOURCES CONVERSATION COMMISSION
    Respondent

   These proceedings arise under the Federal Water Pollution Control Act, 33 U.S.C. 1367 (Act) and implementing regulations. Complainant filed a complaint with the United States Department of Labor alleging he was a protected employee engaged in protected activity within the scope of the Act and was a victim of discrimination as a result of that activity.

   An investigation was conducted by the Occupational Safety and Health Administration (OSHA). In a letter dated October 17, 2001, OSHA notified all parties that Complainant's complaint had no merit. Specifically, it was determined that the activities in which Complainant was engaged were related to his normal job responsibilities and not considered protected activity under the Act. As a result of this determination, Complainant appealed, and the matter was docketed in the Office of Administrative Law Judges, assigned to the undersigned and by notice dated November 1, 2001, a hearing was scheduled for November 27, 2001.

   At the appointed time and place designated for hearing, Respondent, through counsel, filed a Motion to Dismiss upon the grounds that it is a state agency and enjoys sovereign immunity against an action such as this brought by a private citizen. Based upon this motion, and after argument on record, by Joint Motion to Abate filed December 14, 2001, the parties agreed to abatement of this action pending the United States Supreme Court's decision in South Carolina Port Authority v. Federal Maritime Commission, 243 F.3d 165 (4th Cir. 2001) in which writ of certiorari was granted on October 15, 2001. (122 S.Ct. 392). The parties agreed that the issues presented in that case were potentially dispositive of this matter on the questions presented in Respondent's Motion to Dismiss, and that unless the Supreme Court limited its opinion to the specific statute at issue in that case, the matters at issue here would be governed by its outcome.

   By Order dated December 18, 2001, the parties' motion was granted, and this action was stayed pending a ruling by the U. S. Supreme Court in the aforementioned case. The Secretary of Labor did not oppose the stay.

   On May 28, 2002, the U. S. Supreme Court in Case No. 01-46 held in a five to four decision that while the Federal government may sue states in Federal Court to enforce Federal law, non-consenting states are immune from suits from private parties. Specifically, the Court held that sovereign immunity expressed by the 11th Amendment of the U. S. Constitution barred the Federal Maritime Commission from adjudicating a private party's administrative complaint against a non-consenting state.

   On June 17, 2002, a letter signed by both parties' counsel was received agreeing that the administrative complaint filed by the Complainant in this instance should be dismissed without prejudice. A copy of that letter is marked Exhibit A, attached and made a part hereof. The Secretary of Labor declined to take a position concerning the contents of that letter.

   I can draw no distinction between the procedural facts in this matter and those considered by the U. S. Supreme Court. In both instances, a Federal Agency has been requested to adjudicate a complaint brought by a private party against a non-consenting state. In both instances, the Federal government is not a part to the action. Therefore, in the absence of any objection to the contrary, the parties' request is granted and the Complainant's complaint is DISMISSED without prejudice.

   So ORDERED this 9th day of July, 2002, at Metairie, Louisiana.

       C. RICHARD AVERY
       Administrative Law Judge

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